Editing and the law

First Amendment rights provide that people may speak and write free of censorship from the federal government. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Press freedom must be put in context of other rights, which sometimes conflict with First Amendment: - Right to reputation (libel)

Press freedom must be put in context of other rights, which sometimes conflict with First Amendment: - Right to reputation (libel) - Right to be left alone if one wishes (“captive audience”)

Press freedom must be put in context of other rights, which sometimes conflict with First Amendment: - Right to reputation (libel) - Right to be left alone if one wishes (“captive audience”) - Right to a fair trial

Press freedom must be put in context of other rights, which sometimes conflict with First Amendment: - Right to reputation (libel) - Right to be left alone if one wishes (“captive audience”) - Right to a fair trial - Right to profit from one’s intellectual creations -

Press freedom must be put in context of other rights, which sometimes conflict with First Amendment: - Right to reputation (libel) - Right to be left alone if one wishes (“captive audience”) - Right to a fair trial - Right to profit from one’s intellectual creations - Right not to be cheated by deceptive advertising

Libel Definition: A false statement that exposes people to hatred, ridicule or contempt, lowers them in the esteem of their colleagues, causes them to be shunned or injures them in their business or profession.

The following points must be established for a person to win a libel suit against a news organization:

The following points must be established for a person to win a libel suit against a news organization:  The information must be false

The following points must be established for a person to win a libel suit against a news organization:  The information must be false  The person libeled must be clearly identified, not necessarily by name

The following points must be established for a person to win a libel suit against a news organization:  The information must be false  The person libeled must be clearly identified, not necessarily by name  The information must have been published or otherwise viewed by an audience

The following points must be established for a person to win a libel suit against a news organization:  The information must be false  The person libeled must be clearly identified, not necessarily by name  The information must have been published or otherwise viewed by an audience  Reputation of person must be damaged as a result

The following points must be established for a person to win a libel suit against a news organization:  The information must be false  The person libeled must be clearly identified, not necessarily by name  The information must have been published or otherwise viewed by an audience  Reputation of person must be damaged as a result  News organization must be shown to have been at fault

If individual think their rights (right to reputation, right to be left alone) have been damaged by publication, situation is usually handled with a retraction, or a clarification – but it may go to court.

If individual think their rights (right to reputation, right to be left alone) have been damaged by publication, situation is usually handled with a retraction, or a clarification – but it may go to court. A retraction is not a libel defense, but it may be sufficient to ward off a lawsuit.

Defenses against libel The Constitutional defense Actual malice: Public figure must prove publisher recklessly or knowingly published defamatory statements.

Defenses against libel The Constitutional defense Actual malice: Public figure must prove publisher recklessly or knowingly published defamatory statements. NYT vs. Sullivan – ad published in NYT seeking contributions to help defend MLK in an Alabama perjury case. Copy contained minor factual errors.

So, now public officials have to prove actual malice.

Negligence (easier for plaintiff to prove): - Publisher’s actions differed substantially from what other “reasonable” publishers would have done.

Negligence (easier for plaintiff to prove): - Publisher’s actions differed substantially from what other “reasonable” publishers would have done. - Differs from state to state, but most rely on a “reasonable other” standard.

Other defenses against libel Truth is best defense but is difficult to prove – be very careful with stories in which accusations are made.

Other defenses against libel Truth is best defense but is difficult to prove – be very careful with stories in which accusations are made. Fair comment – protects opinion about matters of public interest or things that have been put on public display – but opinion must be fact-based (can’t insinuate baseball player played poorly because of drug use if you don’t clearly have the facts).

Other defenses against libel Truth is best defense but is difficult to prove – be very careful with stories in which accusations are made. Fair comment – protects opinion about matters of public interest or things that have been put on public display – but opinion must be fact-based (can’t insinuate baseball player played poorly because of drug use if you don’t clearly have the facts). Qualified privilege – protects statements quoted during “privileged situations,” such as a proceeding that is open to the public – a court hearing, information that is open to public inspection, public meetings, public records.

General recommendations for editors: 1. Edit for accuracy and balance. 2. In criminal/court cases do not label allegations as crimes. 3. Be careful with reluctant sources (make sure reporter has documented attempts to contact source -- note this in the story.) 4. Try to avoid anonymous sources, but if the story is of great magnitude they may be used ONLY after verifying information with at least one other source. Explain to readers why name is being withheld.

General recommendations for editors (cont’d.): 5. Don’t misrepresent story in headline or quote box, or misrepresent photo in cutline (caption). These elements tend to weigh heavily with jury verdicts. 6. Don’t take “works” from the Internet without securing permission (art, stories, etc.) 7. Be courteous, patient and forthcoming with the public. Most lawsuits are headed off this way. 8. Be transparent with readers – i.e., print retractions, list all staff contributing to stories, explain decisions about anonymous sources, etc.